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Letter to the Senate Regarding Emergency Appropriations funding for USCIS

Click here for a PDF of this Letter

Dear Senator:

As a Church at the service of all God’s people, the United States Conference of Catholic Bishops (USCCB) stands ready to work with the leaders of both parties to protect marginalized people, promote human life and dignity, and advance the common good. I write on behalf of the USCCB’s Committee on Migration to note the funding priorities of USCCB Migration Refugee Services (USCCB/MRS).

The committee has submitted a letter on our funding priorities with respect to programs for immigrants, refugees, unaccompanied children, and trafficking victims in Fiscal Year (FY) 21 (see attached). I write today regarding the recent request for funding by the U.S. Citizenship and Immigration Services (USCIS) due to a projected shortfall of $1.2 billion. We note the important work of USCIS and our concern that not funding the agency in this moment will result in mission-threatening cuts to USCIS’s capacity for adjudicating immigration applications. Our requests fall into three core areas: (1) agency transparency; (2) efficiency in legal immigration; and (3) ensuring access to humanitarian protection for unaccompanied children, refugees and asylum seekers. Please consider the following requests as you work to fund USCIS:

Agency Transparency:

(1) Conduct a formal accounting of how policy changes have affected USCIS’s efficiency and encourage a temporary pause on the implementation of all new policies. We would recommend a halt to new policy implementation within USCIS until there is a full accounting as to how changes have affected USCIS processing and contributed to the surplus drain and case backlog. Particular changes have added redundancy such as new labor-intensive in-person interview requirements on routine cases, and overall increases in paperwork. Furthermore, the sheer number of changes has affected efficiency, particularly with staff and contractors having to halt work for ongoing re-training.

(2) Requested funds should only be spent on core USCIS mission work of adjudication. We would request that funding appropriated by Congress specifically be designated to facilitate adjudications of employment, family-based and humanitarian immigration applications. Funding should not be designated or transferred for enforcement, tip forms or other initiatives outside the scope of adjudications during this time. We would also recommend analysis of how much money has been spent on projects outside of core work and transfers outside of USCIS over recent fiscal years.

Encouraging Efficiency in Legal Immigration:

(3) Improve family-based visa processing. The Catholic Church believes that the family is the building block of our society. We promote family reunification and oppose family separation. Family members of new Americans face increased delays in their legal reunification due to lengthening visa backlogs. For example, in 2019, for certain case types, USCIS estimated it would take the agency more than three years to complete the process.1 We urge USCIS to work to improve the family-based adjudication wait times. We also urge quarterly reporting to Congress on family visa processing. Additionally, in order to reduce further delays, we suggest that USCIS ensure that any unused family-based immigration visas from 2020 can be used in 2021 or 2022.

(4)Implement virtual oath ceremonies. Part of the U.S. Catholic Church’s mission in welcoming is to work to integrate immigrants into our society, with the naturalization process being a vital part of that journey. To clear the backlog and improve processing times, USCIS should clear naturalization cases that have been completed all but for the last step – the oath ceremony. USCIS should implement virtual ceremonies and take measures necessary to clear and complete.

(5) Ensure that USCIS utilizes premium processing fees and consider expanding to other benefit types. In recent years, USCIS has not consistently used premium processing fees, which are known revenue boosters to the financial well-being of the agency. Earlier this month, USCIS reintroduced premium processing for Petitions for Nonimmigrant and Alien Workers, (respectively (Form I-129 and I-140)) and H-1B petitions while this development is welcomed, we urge USCIS to expand premium processing to other benefit types. Additionally, we encourage the Committee to consider directing revenues from premium processing to cover the cost of payroll (instead of infrastructure improvement), in order to ensure that federal workers in USCIS Service Centers are not furloughed and also that adjudication is not disrupted.

Ensuring Access to Humanitarian Protection for Unaccompanied Children, Asylum-Seekers & Refugees

(6) Require USCIS to adjudicate Special Immigrant Juvenile (SIJ) petitions within 180 days and to provide Congress with quarterly reports on efforts to reduce overall case backlog. From FY 2016 to 2019, USCIS’s average processing time for Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, the petition filed by unaccompanied children seeking SIJ humanitarian protection, increased from 4.8 months to 16.8 months, in contradiction with congressional intent of adjudication in 180 days.2 In our programs, we see directly the stress and harm these types of delays can cause children, as it can affect their ability to integrate in their communities and with families. Additionally, there are currently several children in USCCB/MRS foster care programs who are at risk of aging out before their SIJ cases will be adjudicated because of the case backlog delays. Aging out without an SIJ eligibility determination will severely limit a child’s eligibility for continuous placement and for vital social services.

(7) Prohibit fees for seeking asylum and for asylum seekers’ initial requests for employment authorization. In November 2019, USCIS proposed a filing fee for Form I-589, Application for Asylum and for Withholding of Removal, as well as for a first-time I-765, Application for Employment Authorization, filed by an asylum seeker.3 These fees would preclude some unaccompanied children from requesting potentially life-saving relief, while pricing out many others from the employment authorization necessary not only to work, but also to obtain federal identification often needed to access housing, medical care, and educational opportunities while their asylum cases are pending. Likewise, these fees would also preclude many asylum seekers, who have often fled their countries with nothing, from pursuing U.S. asylum protection or supporting themselves as they pursue protection.

(8) Extend flexibility with regard to adjudicated refugee cases. Thousands of refugees whose cases have already been adjudicated by USCIS and are ready for travel in FY 20 may not be able to arrive in the United States due to travel restrictions as a result of the coronavirus. In an effort to maximize USCIS resources, refugees marked “ready for departure” in FY 20 should be counted towards the FY 20 Presidential Determination and should be admitted regardless of category.

(9) Extend validity periods for security checks. Refugees and Special Immigrant Visa holders face significant processing delays due to resource-intensive security checks. These delays have been exacerbated by the present pandemic. In order to prevent use of more USCIS staff resources to review security checks, USCIS and its vetting partners should extend security check validity periods until the resumption of arrivals.

(10)Reduce USCIS expenditures related to refugee adjustment of status applications: Refugees are required by law to seek adjustment of status one year after arrival in the United States. Due to the vetting a refugee receives, these adjustment of status applications can be adjudicated more quickly and efficiently. USCIS should cut expenses by waiving in-person interviews for refugees applying for adjustment of status and re-using biometric information. 4

(11) Restore Cuban Haitian Entrant Program (CHEP): Managing potential migration flows in the Caribbean is essential to maintaining efficient USCIS operations in the future. The Cuban-Haitian Entrant Program (CHEP) was statutorily authorized to provide reception and resettlement services to newly arriving Cubans and Haitians paroled into the U.S. The USCIS should restore the program to be prepared for potential migration events in the Caribbean and Florida. From 2015 to 2019, an estimated 248,251 Cubans and Haitians came to the United States, including 89,422 during the initial years of this Administration.5 The CHEP not only provides crucial humanitarian transitional support for these entrants but also helps the communities respond in an orderly and effective manner.

It is the mission of the Catholic Church to bring to the teaching of Jesus Christ, who reminds us of the truth that every person is created in God’s image merits dignity. The work of the USCCB/MRS on behalf of immigrants, refugees, unaccompanied children, and trafficking victims is part of our ongoing effort to live out this teaching.

Thank you for considering our recommendations.

Sincerely,

Bishop Mario E. Dorsonville Auxiliary Bishop of Washington Chairman, Committee on Migration

 

1CLINIC Written Testimony to the House Judiciary Committee’s Subcommittee on Immigration and Citizenship, July 16, 2019, https://cliniclegal.org/resources/clinics-written-testimony-house-judiciary-committees-subcommittee-immigration-and
2 See USCIS, “Historical National Average Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year,” https://egov.uscis.gov/processing-times/historic-pt.
3 U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62,280 (Nov. 14, 2019) (Proposed Rule).
4See USCIS, Adjustment of Status, https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-status 5Department of Health and Human Services, Fiscal Year 2020, Budget Justification, https://www.acf.hhs.gov/sites/default/files/olab/acf_congressional_budget_justification_2020.pdf (page 39)

Letter to Representatives Regarding Emergency Appropriations funding for USCIS

Click here to Download a PDF version of this letter

June 15, 2020

Dear Representative:

As a Church at the service of all God’s people, the United States Conference of Catholic Bishops (USCCB) stands ready to work with the leaders of both parties to protect marginalized people, promote human life and dignity, and advance the common good. I write on behalf of the USCCB’s Committee on Migration to note the funding priorities of USCCB Migration Refugee Services (USCCB/MRS).

The committee has submitted a letter on our funding priorities with respect to programs for immigrants, refugees, unaccompanied children, and trafficking victims in Fiscal Year (FY) 21 (see attached). I write today regarding the recent request for funding by the U.S. Citizenship and Immigration Services (USCIS) due to a projected shortfall of $1.2 billion. We note the important work of USCIS and our concern that not funding the agency in this moment will result in mission-threatening cuts to USCIS’s capacity for adjudicating immigration applications. Our requests fall into three core areas: (1) agency transparency; (2) efficiency in legal immigration; and (3) ensuring access to humanitarian protection for unaccompanied children, refugees and asylum seekers. Please consider the following requests as you work to fund USCIS:

Agency Transparency:

  • Conduct a formal accounting of how policy changes have affected USCIS’s efficiency and encourage a temporary pause on the implementation of all new policies.We would recommend a halt to new policy implementation within USCIS until there is a full accounting as to how changes have affected USCIS processing and contributed to the surplus drain and case backlog. Particular changes have added redundancy such as new labor-intensive in-person interview requirements on routine cases, and overall increases in paperwork. Furthermore, the sheer number of changes has affected efficiency, particularly with staff and contractors having to halt work for ongoing re-training.
  • Requested funds should only be spent on core USCIS mission work of adjudication. We would request that funding appropriated by Congress specifically be designated to facilitate adjudications of employment, family-based and humanitarian immigration applications. Funding should not be designated or transferred for enforcement, tip forms or other initiatives outside the scope of adjudications during this time. We would also recommend analysis of how much money has been spent on projects outside of core work and transfers outside of USCIS over recent fiscal years.

Encouraging Efficiency in Legal Immigration:

  • Improve family-based visa processing. The Catholic Church believes that the family is the building block of our society. We promote family reunification and oppose family separation. Family members of new Americans face increased delays in their legal reunification due to lengthening visa backlogs. For example, in 2019, for certain case types, USCIS estimated it would take the agency more than three years to complete the process.[1] We urge USCIS to work to improve the family-based adjudication wait times. We also urge quarterly reporting to Congress on family visa processing. Additionally, in order to reduce further delays, we suggest that USCIS ensure that any unused family-based immigration visas from 2020 can be used in 2021 or 2022.
  • Implement virtual oath ceremonies. Part of the U.S. Catholic Church’s mission in welcoming is to work to integrate immigrants into our society, with the naturalization process being a vital part of that journey. To clear the backlog and improve processing times, USCIS should clear naturalization cases that have been completed all but for the last step – the oath ceremony. USCIS should implement virtual ceremonies and take measures necessary to clear and complete cases. 
  • Ensure that USCIS utilizes premium processing fees and consider expanding to other benefit types. In recent years, USCIS has not consistently used premium processing fees, which are known revenue boosters to the financial well-being of the agency. Earlier this month, USCIS reintroduced premium processing for Petitions for Nonimmigrant and Alien Workers, (respectively (Form I-129 and I-140)) and H-1B petitions while this development is welcomed, we urge USCIS to expand premium processing to other benefit types. Additionally, we encourage the Committee to consider directing revenues from premium processing to cover the cost of payroll (instead of infrastructure improvement), in order to ensure that federal workers in USCIS Service Centers are not furloughed and also that adjudication is not disrupted.

 

Ensuring Access to Humanitarian Protection for Unaccompanied Children, Asylum-Seekers & Refugees

 

  • Require USCIS to adjudicate Special Immigrant Juvenile (SIJ) petitions within 180 days and to provide Congress with quarterly reports on efforts to reduce overall case backlog. From FY 2016 to 2019, USCIS’s average processing time for Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, the petition filed by unaccompanied children seeking SIJ humanitarian protection, increased from 4.8 months to 16.8 months, in contradiction with congressional intent of adjudication in 180 days.[2] In our programs, we see directly the stress and harm these types of delays can cause children, as it can affect their ability to integrate in their communities and with families. Additionally, there are currently several children in USCCB/MRS foster care programs who are at risk of aging out before their SIJ cases will be adjudicated because of the case backlog delays. Aging out without an SIJ eligibility determination will severely limit a child’s eligibility for continuous placement and for vital social services.

 

  • Prohibit fees for seeking asylum and for asylum seekers’ initial requests for employment authorization. In November 2019, USCIS proposed a filing fee for Form I-589, Application for Asylum and for Withholding of Removal, as well as for a first-time I-765, Application for Employment Authorization, filed by an asylum seeker.[3] These fees would preclude some unaccompanied children from requesting potentially life-saving relief, while pricing out many others from the employment authorization necessary not only to work, but also to obtain federal identification often needed to access housing, medical care, and educational opportunities while their asylum cases are pending. Likewise, these fees would also preclude many asylum seekers, who have often fled their countries with nothing, from pursuing U.S. asylum protection or supporting themselves as they pursue protection.

 

  • Extend flexibility with regard to adjudicated refugee cases. Thousands of refugees whose cases have already been adjudicated by USCIS and are ready for travel in FY 20 may not be able to arrive in the United States due to travel restrictions as a result of the coronavirus. In an effort to maximize USCIS resources, refugees marked “ready for departure” in FY 20 should be counted towards the FY 20 Presidential Determination and should be admitted regardless of category.

 

  • Extend validity periods for security checks. Refugees and Special Immigrant Visa holders face significant processing delays due to resource-intensive security checks. These delays have been exacerbated by the present pandemic. In order to prevent use of more USCIS staff resources to review security checks, USCIS and its vetting partners should extend security check validity periods until the resumption of arrivals.

 

  • Reduce USCIS expenditures related to refugee adjustment of status applications: Refugees are required by law to seek adjustment of status one year after arrival in the United States. Due to the vetting a refugee receives, these adjustment of status applications can be adjudicated more quickly and efficiently. USCIS should cut expenses by waiving in-person interviews for refugees applying for adjustment of status and re-using biometric information.[4]

 

  • Restore Cuban Haitian Entrant Program (CHEP): Managing potential migration flows in the Caribbean is essential to maintaining efficient USCIS operations in the future. The Cuban-Haitian Entrant Program (CHEP) was statutorily authorized to provide reception and resettlement services to newly arriving Cubans and Haitians paroled into the U.S. The USCIS should restore the program to be prepared for potential migration events in the Caribbean and Florida. From 2015 to 2019, an estimated 248,251 Cubans and Haitians came to the United States, including 89,422 during the initial years of this Administration.[5] The CHEP not only provides crucial humanitarian transitional support for these entrants but also helps the communities respond in an orderly and effective manner.

It is the mission of the Catholic Church to bring to the teaching of Jesus Christ, who reminds us of the truth that every person is created in God’s image merits dignity. The work of the USCCB/MRS on behalf of immigrants, refugees, unaccompanied children, and trafficking victims is part of our ongoing effort to live out this teaching.

 

Thank you for considering our recommendations.

Bishop Mario E. Dorsonville, Auxiliary Bishop of Washington, Chairman, Committee on Migration

 

[1]CLINIC Written Testimony to the House Judiciary Committee’s Subcommittee on Immigration and Citizenship, July 16, 2019, https://cliniclegal.org/resources/clinics-written-testimony-house-judiciary-committees-subcommittee-immigration-and
[2] See USCIS, “Historical National Average Processing Time (in Months) for All USCIS Offices for Select Forms By Fiscal Year,” https://egov.uscis.gov/processing-times/historic-pt.
[3] U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62,280 (Nov. 14, 2019) (Proposed Rule).
[4]See USCIS, Adjustment of Status, https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-status
[5]Department of Health and Human Services, Fiscal Year 2020, Budget Justification,  https://www.acf.hhs.gov/sites/default/files/olab/acf_congressional_budget_justification_2020.pdf (page 39)
2020-06-23T15:07:24-04:00News|

DACA SCOTUS Webinar

On Friday, June 19th, we held a webinar to discuss the ruling that the Supreme Court made on DACA. There are a lot of moving parts with the ruling so our panel of guests was able to answer any questions you may have. Below are the slides and recording of the webinar.

Webinar Slides

2020-06-19T17:44:08-04:00Webinars|

U.S. Bishops’ Migration Chairman on the 20th Anniversary of World Refugee Day

June 19, 2020

WASHINGTON—World Refugee Day, first celebrated in 2000 is observed in the United States and around the world on June 20. The observance was created two decades ago to increase awareness about the situation of refugees around the world. Currently, the world faces the biggest forced migration crisis since World War II, with more than 70 million people forcibly displaced, which includes 25 million refugees around the world, including 13 million refugee children.

The Presidential Determination for determining the number of refugees resettled in the United States was set at an all-time low for the third consecutive year with a total of 18,000 refugees for 2020. Due to the ongoing COVID-19 pandemic and the related shutdown of the refugee program at this time, very few refugees will be able to access protection in the United States this year. On the 20th anniversary of World Refugee Day, in response to the growing number of refugees globally, Bishop Mario E. Dorsonville auxiliary bishop of Washington and chairman of the U.S. Conference of Catholic Bishops’ Committee on Migration issued the following statement:

“Now, more than ever we need to protect and accompany our refugee brothers and sisters. There are too many vulnerable people currently unable to flee persecution who are living in dire circumstances, exacerbated no doubt by the COVID-19 pandemic. As Pope Francis reminds us, ‘we cannot remain insensitive, our hearts deadened, before the misery of so many innocent people. We must not fail to weep. We must not fail to respond.’

“Of particular concern are the most vulnerable of refugees: women, children, the elderly, the infirm, and individuals with special needs. Refugees fleeing religious persecution also continue to face violence, and in some cases, death for practicing their faith. We recognize refugees’ and our own human fragility, and as such, urge a more humane and compassionate embrace of those seeking refuge in our communities, in our country and in our world.”

More information on World Refugee Day, please visit Justice for Immigrants.

 

2020-06-19T11:09:12-04:00Statements|

JFI Action Alert to the U.S. Senate: Please Protect DACA Recipients

The U.S Supreme Court (SCOTUS) has ruled on the Deferred Action for Childhood Arrivals (DACA) program. While SCOTUS allowed DACA to continue, the Administration can still attempt to end DACA at a later date. As a result, DACA immigrant youth are safe for now, but could be at risk for deportation in the future. We must not allow this to happen.

Most DACA recipients have spent the majority of their lives in the U.S., many have families, and all of them contribute to American society as taxpayers, consumers, and community members. Additionally, there are 62,000 DACA-eligible healthcare workers involved in the COVID-19 response.

The U.S. House of Representatives passed the American Dream and Promise Act, H.R. 6, one year ago. H.R. 6 would give a path to citizenship for Dreamers. Now, in the wake of SCOTUS’ ruling, the U.S. Senate must act in order to protect Dreamers from the risk of deportation and family separation. The USCCB supports the DREAM Act, which includes a path to citizenship, and sent a letter to each Senator asking that they the support S. 874, the DREAM Act of 2019. Additionally, USCCB supports efforts to introduce a Senate companion to H.R. 6 as well.

As Catholics, we affirm the inherent dignity of every person. The U.S. Catholic Bishops urge you to express solidarity with Dreamers and ask you to contact your Senators requesting that they support the bipartisan DREAM Act of 2019 and encourage the Senate to introduce a companion bill to H.R.6, the American Dream and Promise Act.

 

 

2020-06-18T13:21:05-04:00Action Alerts|

USCCB President and Migration Committee Welcome Supreme Court Decision on DACA and Urge President to Uphold the Program

June 18, 2020

WASHINGTON—Today, the U.S. Supreme Court issued an opinion preventing the Trump Administration from terminating the Deferred Action for Childhood Arrivals (DACA) program. On November 12, 2019, the Court heard the challenge to the Trump Administration’s DACA repeal efforts, in which U.S. Conference of Catholic Bishops (USCCB) submitted an amicus curiae brief in support of maintaining the program. The DACA program was implemented in 2012 and has enabled approximately 800,000 young people, who paid a fee and submitted to a background check, the opportunity to work legally, access educational opportunities and not fear deportation. DACA recipients on average contribute over $42 billion annually to the U.S. economy. Archbishop José H. Gomez of Los Angeles and president of the USCCB and Bishop Mario E. Dorsonville, auxiliary bishop of Washington and chairman of the USCCB’ Committee on Migration issued the following statement:

“We welcome the U.S. Supreme Court’s decision noting that the Trump Administration did not follow proper administrative procedures required to repeal the DACA program.

“First, to DACA youth, through today’s decision and beyond, we will continue to accompany you and your families. You are a vital part of our Church and our community of faith. We are with you.

“Next, we urge the President to strongly reconsider terminating DACA. Immigrant communities are really hurting now amidst COVID-19 and moving forward with this action needlessly places many families into further anxiety and chaos. In times of uncertainty, let us remember the teachings of the Gospel which encourage us to be open and receptive to those in need: ‘If someone who has worldly means sees a brother in need and refuses him compassion, how can the love of God remain in him?’ (1 John 3:17). In this moment, we must show compassion and mercy for the vulnerable.”

“Lastly, we strongly encourage our U.S. Senators to immediately pass legislation that provides a path to citizenship for Dreamers. Permanent legislative protection that overcomes partisanship and puts the human dignity and future of Dreamers first is long overdue.”

For more information and resources on DACA see https://justiceforimmigrants.org/what-we-are-working-on/immigration/daca-resource-page.

2020-06-18T12:04:23-04:00Statements|

USCCB Comments on Proposed Information Collection Activity; Administration and Oversight of the Unaccompanied Alien Children Program

Click here for a PDF of this Document

 

Administration for Children and Families
Office of Planning, Research and Evaluation (OPRE) 330 C Street SW
Washington, DC 20201

-Submitted Electronically-

Re: “Expedited OMB Review and Public Comment; Proposed Information Collection Activity; Administration and Oversight of the Unaccompanied Alien Children Program” Docket No. FR 2020-07995

Dear ACF Reports Clearance Officer,

The United States Conference of Catholic Bishops Migration and Refugee Services (“USCCB/MRS”) appreciates the opportunity to provide public comment and share our concerns with the Department of Health and Human Services, Office of Refugee Resettlement (“HHS/ORR”) regarding the above referenced Proposed Information Collection Activities within the Unaccompanied Alien Children Program, published in the Federal Register on April 16, 2020 (85 Fed. Reg. 21,240).1

USCCB is a nonprofit organization whose members are the active Catholic Bishops of the United States. MRS, a USCCB Department, advocates and promotes the pastoral teachings of the U.S. Catholic Bishops in diverse areas of the nation’s life. USCCB/MRS has operated programs, working in collaboration with the U.S. government to help protect unaccompanied children from all over the world for nearly 40 years. Since 1994, USCCB/MRS has operated the “Safe Passages” program, serving undocumented children apprehended by the Department of Homeland Security (“DHS”) and placed in the custody of the HHS/ORR. Through cooperative agreements with HHS/ORR and in collaboration with primarily Catholic community-based social service agencies, the Safe Passages program provides residential care (i.e., foster care and small-scale shelter placements) to unaccompanied children in HHS/ORR custody, as well as family reunification services (i.e. pre-release placement screening (“home studies”) and post- release social services for families (“post-release services” or “PRS”)). In fiscal year 2019, the USCCB/MRS Safe Passages program served 1,982 youth who arrived as unaccompanied children—1,520 through the family reunification program and 462 through residential care programs.

Additionally, the U.S. Catholic Church has long worked to support families who have experienced some aspect of immigrant detention, through the provision of legal assistance, visitation, and pastoral accompaniment to those in immigrant detention facilities, as well as social services assistance to those released. USCCB/MRS has also operated several alternatives to detention programs to assist families and other vulnerable populations and is currently working with DHS in the administration of its alternative to detention programs which utilize case management.2 Through all of this work, the vital necessity and importance of the protections set forth in the Flores Settlement Agreement3 have been made apparent. In furtherance of these protections, the U.S. Catholic Church has worked in a bipartisan manner to help implement and ensure government compliance with these requirements. We are heartened to learn that HHS/ORR is working to further ensure the protection of unaccompanied children by setting forth a mechanism in the Form A-5 Authorization for Release of Records (ARR) that creates written requirements for the release of records, which include unaccompanied child’s biographical information, placement documents, legal information, medical records, educational services, case management records, clinical/mental health services, incident reports, discharge/release information, and post-release service records.4 While the proposed ARR form is a step in the right direction, USCCB/MRS is concerned with some aspects of the ARR for the following reasons:

I. New Proposed Changes to the Authorization for Release of Records May Facilitate Information-Sharing Between Agencies and/or Grant Access to Government Agencies Who Should Not Be Privy to an Unaccompanied Child’s Confidential Information

The proposed changes to the ARR form may authorize a government agency to access to a child’s records which the agency should not have in its possession. Under Section G: Authorization,5 the proposed form states that HHS/ORR will release an unaccompanied child’s information, placement documents, legal information, educational services, case management records, discharge, and release information to a government agency without an authorizing signature from the unaccompanied child, their caregiver or legal guardian or a witness. Due to the confidential information contained within the child’s case file, an authorizing signature should be required even when released to another government agency. USCCB/MRS is particularly concerned with this new proposed provision as it could facilitate information sharing with DHS and other non-social service government entities and enable the use of these records for enforcement purposes. The sharing of a child’s information for these purposes runs contrary to the confidential nature of the information and the trust that a child has that such information will remain confidential.

Further, while HHS/ORR will generally only release information from the above categories to a government agency in the absence of an authorizing signature, Section G explains that in cases where the unaccompanied child is still in HHS/ORR custody and is under the age of 14 or is 14 years or older and has been diagnosed with a developmental disability, HHS/ORR normally presumes consent and, without requiring a signature, will additionally release clinical and mental health records necessary for the provision of services in accordance with HHS/ORR Policy Guide Section 3.3.6 Where the information is requested for reasons other than the provision of services, HHS/ORR requires the consent of the child’s parent or legal guardian, but does not explicitly state that a signature is required, nor does the new form state ways in which consent will be considered granted in the absence of signature.7 This lack of clarity as to what would constitute consent is confusing for parents and guardians of unaccompanied children as well for caseworkers who may be asked about this issue. For children in ORR care, the proposed changes in the ARR form could potentially create broad categories of sensitive information that government agencies may access with little to no consent from children or their parents or legal guardians. This is of utmost concern in the case of mental health records, which include progress notes from individual counseling sessions, group counseling notes or records, mental health services progress notes, mental health assessments, records of mental health office visits or hospitalizations and more,8 in light of reports of Immigration and Customs Enforcement (“ICE”) using a child’s confidential therapy notes obtained while in HHS/ORR custody, to undermine their immigration claims.9

We recommend that any proposed change to the ARR form include specific information covering what type of information would be shared and with whom, in the form of the specific government entities and the exact information that will be shared. We also advise that this language be clearly included in simple and non-legal terms to help ensure that children, parents and guardians are able to understand what they may be assenting to in terms of sharing sensitive information with government entities.

II. The Proposed Form for Authorization for Release of Records Fails to Implement Acceptable Standards for Consent

As mentioned, under Section G: Authorization, HHS/ORR presumes consent for children in their custody under the age of 14 as well as children 14 years old or older with a diagnosed developmental disability and will release records in its discretion in the best interest of the child.10 This presumption grants HHS/ORR far-reaching discretion in its determination of which records will be released, as well as to which individuals or entities it will release records to regarding a child’s personal information. The proposed change could potentially lead to discrepancies in HHS/ORR’s application of its discretion, creating scenarios in which one child’s records are released and another’s withheld, with no oversight or meaningful insight into the reasons for the decision-making, and no tangible guidance for standards in future such instances. This breadth of discretion by HHS/ORR could lead to abuses of power that are consequential for the children in its care. Additionally, disparate outcomes on release of information could create obstacles for service providers in terms of explaining the process to adults and legal guardians.

III. The Proposed Authorization for Release of Records Needs to Be Accessible in Multiple Languages

As stated above, for children in and outside of HHS/ORR custody, HHS/ORR requires the signature of children age 14 or older for the release of records. The proposed ARR form is only available in English. Ideally, a child’s case manager will translate and explain the process to the child; however, the proposed form does not indicate the manner or the extent to which children required to sign for release of records are informed of their rights, or given details as to what it is they are consenting to, which in this case may include release of clinical/mental health services and medical records. In recent years, requiring immigrant parents to sign forms they did not understand after having been separated from their children was considered to be a coercive tactic used by DHS.11 This is a particularly worrisome notion in the cases of children age 14 or older who remain in ORR custody and may fear they will not be reunited with a parent or legal guardian but for the signing of this document. Without any meaningful way to determine whether a child 14 years old or older understands the ARR form, the signature requirement is not an acceptable standard for informed consent.

We urge that all pertinent forms, including the proposed ARR form be translated into Spanish, and the top three other languages of origin of unaccompanied children, including indigenous languages such as Mam, K’iche’, and Q’anjob’al. Further, in order to ensure accuracy and consistency in the way in which this information is shared with unaccompanied children and their caregivers, ORR care provider staff should receive thorough training on the requirements of the new ARR form. Additionally, as certain parents or guardians may not be literate, we recommend that HHS/ORR consider a guide to be included for explaining the forms and significance of them to those who cannot read as well as special need parents who may encounter obstacles to reading the text on the forms as well.

Conclusion

For the reasons set forth above, we note that the proposed changes to the ARR fail to implement adequate safeguards against information sharing of an unaccompanied child’s records between government agencies and is not adequately accessible to the variety of literacy levels and languages represented among unaccompanied children, their parents, or guardians. We welcome the opportunity to work with you on this matter in the future. The care and safety of unaccompanied children is vital to our mission and the humanitarian interests of this country.

Respectfully submitted,

Anthony R. Picarello, Jr.
General Counsel & Assc. General Secretary

 

1 Expedited OMB Review and Public Comment; Proposed Information Collection Activity; Administration and Oversight of the Unaccompanied Alien Children Program, 85 Fed. Reg. 21,240 (Apr. 16, 2020).
2 See e.g., U.S. Conference of Catholic Bishops/Migration and refugee Serv., et al., The Real Alternatives to Detention, JUSTICE FOR IMMIGRANTS, available at https://justiceforimmigrants.org/wp- content/uploads/2019/06/The-Real-Alternatives-to-Detention-June-2019-FINAL-v.2.pdf
(last visited May 18, 2020).
3 Settlement Agreement, Flores, et al. v. Reno, et al., Case No. CV 85-4544 (C.D. Cal., Jan. 1, 1997), available at https://www.aila.org/File/Related/14111359b.pdf.
4 Expedited OMB Review and Public Comment; Proposed Information Collection Activity; Administration and Oversight of the Unaccompanied Alien Children Program, 85 Fed. Reg. 21,240 (Apr. 16, 2020), Authorization for Release of Records at 5-6.
5 Id. at 7.
6 Id. See also Office of Refugee Resettlement, Children Entering the United States Unaccompanied, Policy Guide, Section 3.3, available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united- states-unaccompanied.
7 Authorization for Release of Records, supra note 4 at 7.
8 Authorization for Release of Records, supra note 4 at 6.
9 “Editorial: When the U.S. Uses Migrants’ Therapy Disclosures Against Them,” LOS ANGELES TIMES (Mar. 10, 2020), available at https://www.latimes.com/opinion/story/2020-03-10/trump-administration- migrant-therapy-asylum.
10 Authorization for Release of Records, supra note 4 at 7.
11 “The Illegal and Systematic Practice of Coercing Separated Families Must Be Investigated,” AMERICAN IMMIGRATION COUNCIL (Aug. 23, 2018), available at https://www.americanimmigrationcouncil.org/advocacy/illegal-and-systematic-practice-coercing- separated-families-must-be-investigated.
2020-07-14T10:48:29-04:00News, Uncategorized|